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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________________
No. 18-11004
________________________
D.C. Docket No. 2:16-cv-14325-RLR
DEMETRIUS OSBOURNE,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 6, 2020)
Before ROSENBAUM, JILL PRYOR, and BRANCH, Circuit Judges.
PER CURIAM:
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Demetrius Osbourne, a Florida prisoner, appeals the district court’s
dismissal of his 28 U.S.C. § 2254 petition for a writ of habeas corpus for lack of
jurisdiction as an unauthorized second or successive petition. He argues on appeal
that his petition was not second or successive because a new judgment was entered
in 2014. As discussed in further detail below, the state trial court granted in part
his motion to correct sentence, pursuant to Fla. R. Crim. P. 3.800(a), and issued an
amended sentence nunc pro tunc, which removed a 10-year mandatory minimum
term on one of his counts of conviction. After careful review, we conclude that
because the amended sentence was entered nunc pro tunc under Florida law, it
related back to the date of the original judgment and it was not a “new judgment”
for purposes of 28 U.S.C. § 2244(b). Consequently, the district court properly
determined that Osbourne’s latest § 2254 petition was an unauthorized second or
successive petition over which it lacked jurisdiction, and we affirm.
I. Background
In 2003, a Florida jury convicted Osbourne of robbery with a deadly weapon
(firearm) and aggravated battery with a deadly weapon (a firearm). He was
sentenced to life imprisonment on the robbery offense and a concurrent 15-year
term on the aggravated battery offense. Each respective sentence included a
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10-year mandatory-minimum term of imprisonment for possession of a firearm. 1
Following his sentencing, Osbourne vigorously pursued state postconviction relief,
and in 2010, he filed a § 2254 federal habeas petition, which was denied on the
merits.
Subsequently, in May 2014, Osbourne filed a pro se motion to correct
sentence in the state trial court, pursuant to Florida Rule of Criminal Procedure
3.800(a),2 in which he argued, among other things, that the 10-year
mandatory-minimum terms imposed on each count were illegal because the
charging information failed to allege actual possession of the firearm or reference
the relevant firearm enhancing statute. Following the State’s response, the trial
court granted his motion in part and denied it in part. Specifically, the trial court
agreed that the 10-year mandatory-minimum term for the robbery count “may have
be in error, although moot” because more than 10 years had passed since
Osbourne’s sentencing. Nevertheless, the trial court ordered that an “amended
sentence” be entered, “nunc pro tunc to April 21, 2003, to reflect the deletion of
1
Under Florida law, a person who is convicted of certain felonies, including robbery and
aggravated battery, “and during the commission of the offense, such person actually possessed a
‘firearm’ or ‘destructive device’ as those terms are defined in s. 790.001, shall be sentenced to a
minimum term of imprisonment of 10 years[.]” Fla. Stat. § 775.087(2)(a)(1) (2002).
2
This rule provides in relevant part that: “A court may at any time correct an illegal
sentence imposed by it, or an incorrect calculation made by it in a sentencing scoresheet, when it
is affirmatively alleged that the court records demonstrate on their face an entitlement to that
relief . . . .” Fla. R. Crim. P. 3.800(a)(1).
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the ten year mandatory minimum on [Osbourne’s] robbery conviction (count one)
only. The defendant’s sentence remains unchanged in all other respects.” Notably,
the sentencing form used by the trial court utilized various boxes to indicate the
action taken, which included options for a “modified,” “amended,” or “corrected”
sentence, or a “resentence.” The trial court selected “amended” sentence with the
notation that the sentence was “[a]mended to reflect Court Order for deletion of the
ten year mandatory firearm minimum.” The form also provided that the amended
sentence was imposed “nunc pro tunc” to April 21, 2003—the date of Osbourne’s
original judgment. Osbourne appealed the denial in part of his Rule 3.800 motion
and Florida’s Fourth District Court of Appeal summarily affirmed without written
opinion.
Thereafter, in July 2016, Osbourne filed the underlying pro se § 2254
petition for a writ of habeas corpus, asserting claims of ineffective assistance of
trial counsel and that the remaining 10-year mandatory-minimum term on the
aggravated battery conviction violates the due process clause. He maintained that
the petition was timely because he “was resentenced and a new judgment was
entered” in 2014. In response, the State argued that the district court should
dismiss the petition as an unauthorized second or successive § 2254 petition
because Osbourne had unsuccessfully litigated his initial § 2254 petition in 2010
and Osbourne had not been resentenced or subject to a new judgment. Rather, the
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2014 judgment was simply the “ministerial act of correcting the original judgment
nunc pro tunc.”
Upon review, the magistrate judge recommended that Osbourne’s § 2254
petition be dismissed as an unauthorized second or successive petition because the
2014 order “had no effect on [Osbourne’s] underlying convictions or sentences,
and did not result in a ‘new judgment’ for purposes of § 2244(b).” The district
court adopted the magistrate’s report and recommendation over Osbourne’s
objections. This appeal followed.3
II. Standard of Review
“We review de novo whether a petition for a writ of habeas corpus is second
or successive.” Patterson v. Sec’y, Fla. Dep’t of Corr.,
849 F.3d 1321, 1324 (11th
Cir. 2017) (en banc).
III. Discussion
With certain exceptions not relevant here, the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”) provides that, before a petitioner may file a
second or successive §2254 habeas petition, the petitioner first must obtain an
order from this Court authorizing the district court to consider the petition. See
3
Although generally appeals from § 2254 proceedings require a certificate of
appealability (“COA”), no COA is necessary to appeal the dismissal for lack of subject matter
jurisdiction of a successive habeas petition because such orders are not “a final order in a habeas
corpus proceeding.” See Hubbard v. Campbell,
379 F.3d 1245, 1247 (11th Cir. 2004). Instead,
we may review such a dismissal as a “final decision” under 28 U.S.C. § 1291.
Id.
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28 U.S.C. § 2244(b)(3)(A). Absent authorization from this Court, the district court
lacks jurisdiction to consider a second or successive habeas petition. See Farris v.
United States,
333 F.3d 1211, 1216 (11th Cir. 2003). However, “where . . . there is
a ‘new judgment intervening between the two habeas petitions,’ an application
challenging the resulting new judgment is not ‘second or successive[.]’” See
Magwood v. Patterson,
561 U.S. 320, 341–42 (2010) (quoting Burton v. Stewart,
549 U.S. 147, 156 (2007)). In other words, “[w]hether a petition is second or
successive depends on ‘the judgment challenged.’”
Patterson, 849 F.3d at 1325
(en banc) (quoting Insignares v. Sec’y, Fla. Dep’t of Corr.,
755 F.3d 1273, 1278
(11th Cir. 2014)). The conviction and sentence together make up the criminal
judgment. See Burton v. Stewart,
549 U.S. 147, 156 (2007). Thus, in Osbourne’s
case, we must determine whether the 2014 amended sentence resulted in a new
judgment for purposes of § 2244.
We start with what constitutes a new judgment. The Supreme Court
addressed this issue in Magwood. After being sentenced to death for murder and
exhausting postconviction relief in the Alabama state courts, Magwood filed a
federal § 2254 petition challenging both his conviction and his
sentence. 561 U.S.
at 323. Magwood’s § 2254 petition was conditionally granted, with directions that
Magwood either be released or resentenced.
Id. The state trial court subsequently
held a full resentencing, but ultimately imposed the same sentence.
Id. at 323, 326.
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After again challenging his new death sentence in state court, Magwood filed
another § 2254 petition raising a fair-warning claim and an ineffective-assistance-
of-counsel claim, both of which directly related to the resentencing proceedings.
Id. at 327–28. The district court sua sponte addressed whether Magwood’s present
§ 2254 petition was second or successive for purposes of § 2244, concluded it was
not, and proceeded to address the merits of Magwood’s claims.
Id. at 328. On
appeal, we reversed in part the district court’s ruling as to the successive nature of
the petition, concluding that Magwood’s fair-warning claim was a prohibited
second or successive claim under § 2244 because it “challenged the trial court’s
reliance on the same (allegedly improper) aggravating factor that the trial court had
relied upon for Magwood’s original sentence.”
Id. at 329. In reversing our
decision, the Supreme Court explained that the phrase “second or successive” in
§ 2244(b) “must be interpreted with respect to the judgment challenged.”
Id. at
332–33. Accordingly, the Magwood court concluded that because a new,
intervening judgment was entered following the resentencing, Magwood’s new
§ 2254 petition which challenged “new errors” made at the resentencing was not
“second or successive” for purposes of § 2244(b).
Id. at 339, 342. In reaching this
conclusion, the Magwood Court left open the question of whether a petitioner
could challenge the original, undisturbed conviction in a new § 2254 petition
where the State imposed only a new sentence.
Id. at 342.
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Subsequently, in Insignares, we considered the question left open in
Magwood as to whether a habeas petition is “second or successive” for purposes of
§ 2244 where it challenges an undisturbed conviction following the imposition of
only a new
sentence. 755 F.3d at 1277–78. Specifically, after pursuing federal
habeas relief, Insignares filed a Rule 3.800 motion to correct his sentence.
Id. at
1277. The state court granted the motion, reduced the mandatory-minimum
imprisonment term for one of his counts of conviction from 20 to 10 years, and
“entered a corrected sentence and new judgment.”
Id. Insignares then filed a new
§ 2254 petition.
Id. Although the State did not contest that a new judgment was
entered within the meaning of Magwood for purposes of § 2244, it argued that
Insignares’s new § 2254 petition was nevertheless “second or successive” because
it challenged the undisturbed conviction and raised the same issues as his first
§ 2254 petition.
Id. at 1278. We concluded that because there is only one
judgment, which “is comprised of both the sentence and the conviction,” a habeas
petition is not second or successive where it follows a new judgment, “regardless
of whether its claims challenge the sentence or the underlying conviction.”
Id. at
1281.
Importantly, however, not every action that alters a sentence necessarily
constitutes a new judgment for purposes of § 2244. For example, in Patterson, we
emphasized that “[t]he judgment that matters for purposes of section 2244 is ‘the
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judgment authorizing the petitioner’s
confinement.’” 849 F.3d at 1325 (en banc)
(quoting
Magwood, 561 U.S. at 332). We then concluded that the state court’s
grant of a Florida Rule 3.800 motion to correct sentence and issuance of an order
removing a sentencing requirement that the defendant undergo chemical castration
did not constitute a new judgment for purposes of § 2244.
Id. at 1325–28. In
reaching this conclusion, we explained that Patterson’s circumstances were
distinguishable from Magwood and Insignares because in Patterson’s case the state
trial court did not issue a new prison sentence.
Id. at 1325–26. Rather, the state
court merely issued an order barring the imposition of the chemical castration
condition, “but it did not otherwise address the term of Patterson’s imprisonment.”
Id. at 1326. Consequently, unlike in Magwood and Insignares, there was no
intervening judgment authorizing Patterson’s confinement, and he was still in
custody pursuant to his original 1998 judgment.
Id. In so holding, we rejected the
argument that the test for whether there is a new judgment for purposes of § 2244
should be whether the prisoner’s sentence “has materially changed.”
Id. at 1326–
27. We also rejected the argument that “any order that alters a sentence
necessarily constitutes a new judgment,” noting that state courts often make many
“ameliorative changes in sentences . . . as a matter of course, such as the removal
of a fine or a restitution obligation,” and to say that such action results in a new
judgment every time for purposes of federal habeas review would directly
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contradict the central purpose of the AEDPA: “to ensure greater finality of state
and federal court judgment in criminal cases.”
Id. at 1326–27 (quoting Gonzalez v.
Sec’y for Dep’t of Corr.,
366 F.3d 1253, 1269 (11th Cir. 2004) (en banc)). With
these principles in mind, we now address whether the 2014 amended sentence
entered nunc pro tunc in Osbourne’s case constitutes a “new judgment” for
purposes of § 2244.
Although there are clear parallels between Osbourne’s case and Insignares,
we find in this case the determining factor as to whether the state court judgment is
a “new judgment” for purposes of § 2244(b) turns on the nunc pro tunc
designation. Specifically, unlike in Magwood or Insignares, Osbourne’s amended
sentence was imposed nunc pro tunc under Florida law to the date of the original
judgment. In Florida, “[a] court may enter an order nunc pro tunc to correct the
record of an order [a]ctually made, which was either entered incorrectly in the
court records or not entered at all.” In re Riha’s Estate,
369 So. 2d 404, 404 (Fla.
2d Dist. Ct. App. 1979). And under Florida law, “[n]unc pro tunc means ‘now for
then’” and when a legal order or judgment is imposed nunc pro tunc it “refers, not
to a new or de novo decision, but to the judicial act previously taken, concerning
which the record was absent or defective.” Colon v. State,
909 So. 2d 484, 487
(Fla. 5th Dist. Ct. App. 2005)(quoting Briseno v. Perry,
417 So. 2d 813, 814 (Fla.
5th Dist. Ct. App. 1982)); see also Boggs v. Wainwright,
223 So. 2d 316, 317 (Fla.
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1969) (“That a court of record may, even after the term has expired, correct clerical
mistakes in its own judgments and records, nunc pro tunc, and that such
corrections generally relate back and take effect as of the date of the judgment,
decree, order, writ, or other record, is well settled.” (quoting R. R. Ricou & Sons
Co. v. Merwin,
113 So. 745, 746 (1927))). In light of the trial court’s nunc pro
tunc designation when issuing Osbourne’s amended sentence, the date of
Osbourne’s sentences and conviction remained April 21, 2003. 4 See
Colon, 909
So. 2d at 487. In other words, because the correction to the sentence was imposed
nunc pro tunc, under Florida law the 2014 amended sentence related back to the
date of the initial judgment and was not a “new judgment” for purposes of § 2244.
See
Colon, 909 So. 2d at 487; see also
Patterson, 849 F.3d at 1327 (noting that
Florida Rule 3.800(a) encompasses some errors that may relate back to the original
4
We note Florida law also provides that “when the court wholly omits an order or
wishes to change it, the new order cannot be entered nunc pro tunc.” Riha’s
Estate, 369 So. 2d
at 404. However, Osbourne did not challenge the imposition of the amended sentence nunc pro
tunc in state court, despite having the opportunity to do so. Further, he does not raise any
challenge to the nunc pro tunc designation now. Under these circumstances and because the
propriety of labeling a Florida judgment “nunc pro tunc” is a matter of state law, we do not opine
as to whether the imposition of the amended sentence in his case was the proper or correct use of
a nunc pro tunc designation under Florida law. That is a matter best left to the province of the
state court. See Coleman v. Thompson,
501 U.S. 722, 731 (1991) (“Because ‘it would be
unseemly in our dual system of government for a federal . . . court to upset a state court
conviction without an opportunity to the state courts to correct [an alleged] violation,’ federal
courts apply the doctrine of comity, which ‘teaches that one court should defer action on causes
properly within its jurisdiction until the courts of another sovereignty with concurrent powers,
and already cognizant of the litigation, have had an opportunity to pass upon the matter.’”
(quoting Darr v. Burford,
339 U.S. 200, 204 (1950))). Our decision here is limited to the effect
of the nunc pro tunc designation under Florida law and what effect that designation has on
whether the judgment is a new judgment for purposes of § 2244(b).
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sentencing, and “[a]n order that relates back to an original sentence merely amends
the original order and may not entitle the defendant to vacatur of the original
judgment and entry of a new one”).
In conclusion, unlike in Magwood and Insignares, there is no intervening
new judgment here authorizing Osbourne’s confinement. Rather, Osbourne is still
confined pursuant to the 2003 judgment. Consequently, Osbourne’s latest § 2254
was an unauthorized second or successive petition over which the district court
lacked jurisdiction. 5 See
Farris, 333 F.3d at 1216.
AFFIRMED.
5
In support of his contention that the 2014 amended sentence constitutes a new judgment
for purposes of § 2244, Osbourne primarily relies on Wentzell v. Neven,
674 F.3d 1124 (9th Cir.
2012), and Gonzalez v. Sherman,
873 F.3d 763 (9th Cir. 2017), but his case is factually
distinguishable as the intervening judgments in those cases were not entered nunc pro tunc. See
Wentzell, 674 F.3d at 1125;
Gonzalez, 873 F.3d at 772–73. Regardless, those cases are not
binding precedent in this Circuit. See Generali v. D’Amico,
766 F.2d 485, 489 (11th Cir. 1985)
(“[A]uthority from one circuit of the United States Court of Appeals is not binding upon another
circuit.”).
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